It is not uncommon for Wills to appoint more than one person as Executors- often adult siblings. And unfortunately, it is also not uncommon for siblings to fight. We see this regularly in estates where the siblings are both Executors but can’t agree or communicate on the running of the estate. So, what happens?
While disagreements between Executors can be clear from the start, often they arise over time. This means that at the start of a deceased estate, we might see both Executors and they might both be happy for us to start the Probate process. For us, this means they are both providing us with instructions and they are both our client as Executors of the Estate.
However, once they start to disagree, this presents problems for the lawyer as the lawyer is getting different instructions from each of the Executors.
The first step is seeing if the Executors can resolve this themselves. This can be through any sort of conflict resolution, such as an independent family member acting as a mediator. This can be enough to make sure the two Executors can agree on instructions to the lawyer.
But if they really can’t agree?
Sadly, however, in practice we only rarely see this actually work in the long term. The inevitable next step is that each of the Executors gets their own lawyer. This means there are three lawyers involved- one for the estate, and one for each of the two Executors. While we as lawyers are very used to dealing with this situation, as you can imagine it can get complicated and expensive! Usually, once each party has their own lawyer, it stays that way until the whole estate is resolved.
And if they still disagree?
Even having independent lawyers negotiating is not a guarantee of progress. Sometimes Executors are at such disagreement that the only option is to apply to the Supreme Court for orders on what needs to be done. In this case, the Court acts as a final arbiter to break the deadlock and set a course of action.
How can I prevent this?
If you are making your Will, consider your Executors carefully. If you think your children might fight, perhaps you should appoint an independent Executor. We have performed this service for many similar estates.
If you are an Executor and it looks like trouble might be brewing, it is worth trying to have a round table conference to make sure the other Executor understands what will happen if you keep disagreeing and hope you can resolve the matter. Failing this, you should seek some advice from an independent lawyer about your position.
It is distressing and difficult to be in disagreement with a co-Executor. But be reassured that the situation is far from unusual and good legal assistance can help you.